THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44722/98 by Wiesław ŁATASIEWICZ against Poland

The European Court of Human Rights (Third Section), sitting on 1 April 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr J. Hedigan , Mrs H.S. Greve , Mr K. Traja , Mr L. Garlicki, judges ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 7 March 1998,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Wiesław Łatasiewicz, is a Polish national, who was born in 1946. He is a journalist and lives in Kielce, Poland. He is represented by Mr Z. Cichoń, a lawyer practising in Cracow, Poland. The respondent Government were represented by Mr K. Drzewicki and, subsequently, by Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 10 March 1997 the Kielce District Court ( Sąd Rejonowy ) allowed an application of the Kielce Regional Prosecutor ( Prokurator Prokuratury Wojewódzkiej ) and decided to detain the applicant for a period of three months. The applicant, who was charged with fraud, was taken into custody on the same day. The charges of fraud brought against the applicant, who was the sole accused, concerned business transactions in which he misled other parties to contracts.

On 17 April 1997 the prosecution service filed with the Kielce Regional Court ( Sąd Wojewódzki ) a bill of indictment. The prosecution asked the trial court to take evidence from one hundred-twelve witnesses and filed a list of seventy-seven victims.

In May 1997 the applicant was hospitalised.

On 19 September 1997 the applicant's counsel filed with the Kielce Regional Court an application for release from detention but it was dismissed on 6 October 1997. The court's decision was reasoned as follows:

“The applicant's counsel submitted in his application for release that Wiesław Łatasiewicz should not be detained because of his ill-health. The court has received from the Kielce Detention Centre a medical certificate which confirms that [although] W. Łatasiewicz suffers from minor ailments, he is in good health and can remain in Detention Centre and receive treatment while detained.

The evidence collected in the case sufficiently shows that the accused committed the acts with which he was charged. In view of the gravity of the charges laid against him, his detention is justified by the possibility of a heavy sentence. The court considers that none of the reasons for release from detention listed in Article 218 of the Code of Criminal Proceedings applies to Wiesław Łatasiewicz.”

On 10 October 1997 the Kielce Regional Court decided to extend the applicant's pre-trial detention until 10 February 1998.

On 20 October 1997 the applicant's counsel appealed to the Kraków Court of Appeal ( Sąd Apelacyjny ) against the decision of 10 October 1997. He pointed out that there had been no judicial decision authorising the applicant's detention between 10 June 1997, when the detention order issued on 10 March 1997 had expired, and 10 October 1997, the date of the appealed decision. Therefore, the detention during that period had been unlawful. In addition, the counsel asserted that the trial court had remained inactive during a period of six months, which resulted in the unreasonable delay and showed that the applicant's detention had not been necessary. This resulted in a breach of Article 5 § 3 of the European Convention on Human Rights and justified the applicant's release.

On 30 October 1997 the Kraków Court of Appeal dismissed the appeal. It agreed with the applicant that there had been no judicial decision authorising his detention between 10 June and 10 October 1997. However, courts had become aware that such a decision had been necessary only in October 1997 when the Supreme Court's resolution no. I KZP 23-97 of 2 September 1997 had been published. Moreover, the appellate court agreed with the applicant's criticism of a period of inactivity on the part of the trial court, but pointed out that in May 1997 the applicant had been taken to a hospital, and in June 1997 he had been allowed to consult his case file. However, the gravity of the charges brought against the applicant and the necessity to verify extensive evidence justified his detention.

On 19 November 1997 the first hearing before the Kielce Regional Court was held. It was adjourned until 5 December 1997.

Subsequently, the hearing scheduled for 5 December 1997 was postponed until 29 December 1997 as the applicant's counsel was ill.

On 29 December 1997 the court heard several witnesses. The next hearing was fixed for 15 January 1998 but it was adjourned until 18 February 1998 because the applicant was in hospital.

During the hearing held on 15 January 1998 the Regional Court decided to prolong the applicant's detention until 10 May 1998. It considered that there was a reasonable suspicion that the applicant had committed the offences with which he was charged. In addition, the court pointed out that the applicant could receive a heavy sentence and that numerous witnesses waited to be heard. Finally, it considered that none of the reasons for release provided by Article 218 of the Code of Criminal Proceedings applied to the applicant's case.

On 29 January 1998 the Cracow Detention Centre Hospital informed the trial court that the applicant would probably remain in the hospital for three weeks and that his health did not prevent him from being detained.

Subsequently, the hearings were held on 18 February, 11 and 30 March, 15 and 16 April 1998.

During the hearing held on 6 May 1998 the Kielce Regional Court prolonged the applicant's detention until 10 July 1998. The court referred to the fact that thirty-two witnesses still waited to be heard.

On 11 May 1998 the applicant appealed the decision of 6 May 1998 but subsequently he withdrew his appeal during a hearing held on 21 May 1998.

In June 1998 the trial court received evidence from three expert witnesses.

The hearing held on 4 June 1998 was adjourned as the applicant was unwell. The next hearing was held on 17 June 1998.

During the hearing held on 2 July 1998 the applicant applied for release from detention but his application was dismissed. The court extended the applicant's detention until 10 September 1998.

On 13 July 1998 the applicant appealed against the decision of 2 July 1998 prolonging his detention but his appeal was dismissed on 30 July 1998.

The hearings scheduled for 12 and 31 August 1998 were adjourned because the applicant was in hospital.

On 7 September 1998 the applicant was released on bail.

On 28 May 2003 the Kielce Regional Court convicted the applicant as charged and sentenced him to two and a half years' imprisonment. The applicant appealed against this judgment.

On 28 January 2004 the appellate court upheld the applicant's conviction but changed his sentence to a two-year prison term suspended for four years.

B. Relevant domestic law

1. The Code of Criminal Procedure 1969

At the material time, the Code of Criminal Procedure 1969 listed as preventive measures, inter alia, detention on remand, bail and police supervision. Article 209 of the Code, which set out general grounds justifying the imposition of preventive measures, provided as follows:

“Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”

Furthermore, the Code of Criminal Procedure allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures. Detention on remand was regarded as the most severe preventive measure. Article 213 § 1 of the Code provided as follows:

“A preventive measure shall be immediately quashed or changed if the grounds therefor have ceased to exist or if new circumstances have arisen, which justify quashing a given measure or replacing it with one that is either more or less severe.”

Article 225 of the Code provided:

“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.”

Article 217 §§ 1 and 2 of the Code provided:

Ҥ 1. Detention on remand may be imposed if:

1. there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent domicile, or

2. there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means.

§ 2. If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years' imprisonment, or if a court of first instance has sentenced him to at least three years' imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”

Article 218 provided:

“If there are no special reasons to the contrary, detention on remand should be quashed, in particular, when:

1. it may seriously jeopardise the life or health of the accused; or

2. it would entail hardship for the accused or his family.”

2. The Supreme Court's resolutions

On 6 February 1997 the Supreme Court adopted a resolution (no. I KZP 35/96) in which it construed the amendments to the Code of Criminal Procedure 1969, which had entered into force on 4 August 1996. The Supreme Court replied in the affirmative to the question whether, after the lodging of a bill of indictment, the trial court was obliged to take a decision prolonging detention on remand which had meanwhile exceeded the period fixed (or further prolonged) at the investigation stage. The relevant parts of the resolution read as follows:

“Under the provisions of the Code of Criminal Procedure which applied before [4 August 1996, when] the amendment of 29 June 1995 took effect, an obligation to determine the period of detention imposed by a prosecutor at the investigation stage was laid down in Article 211 § 2. However, it did not emerge explicitly from Article 222 §§ 1 and 2 (1) of the Code that, at the investigation stage, a prosecutor or the court competent to deal with the case had each time to determine the point until which detention should last. It was deemed to be obvious that, when prolonging detention at the investigation stage, both the prosecutor and the court competent to deal with the case had to determine the time until which detention was to last under a given decision. It was therefore assumed that the obligation to determine the period of detention arose if a decision on that matter was given before the expiry of the maximum statutory terms applicable at a given stage of the proceedings.

Comparing the old legislation with the present one leads [this Court] to the conclusion that the legislator, when amending the Code in June 1995, simply extended [the scope of] the rules applicable to continuing and prolonging detention on remand – which had previously applied only at the investigation stage – to the phase of court proceedings.

Before the amendment, the legislation was based on the precept that a suspect should not be detained indefinitely as long as his case was not being dealt with by an independent court. Now, the starting-point is that a suspect (and an accused) should not be detained indefinitely as long as a first-instance judgment is not rendered.

Under the previous legislation there was no need to determine the period of detention after a bill of indictment had been lodged with the court because at this point proceedings reached the phase in which there was no statutory time-limit [on this measure]. For this reason, the court concerned had no interest in [knowing] until when detention had been prolonged under the last decision[;] detention could continue because 'detention of limited duration' had become 'detention of unlimited duration'. There was therefore only a need to ascertain whether there were grounds for continuing detention under Article 213 of the Code.”

In its further resolution (no. I KZP 23/97) of 2 September 1997, the Supreme Court confirmed that:

“If the case, in which detention on remand had been ordered, has been referred to a court with a bill of indictment and the period of detention which had previously been fixed expires, the court has a duty to consider whether detention needs to be continued and to give an appropriate decision on this matter.”

Referring to the resolution of 6 February 1997, it also stressed that:

“ ... the ratio legis of the amendments to criminal legislation is based on the precept that a suspect (accused) should in no case be detained indefinitely until the first ‑ instance judgment is rendered in his case ...

It should be noted that, from the point of view of procedural safeguards for an accused, what is material is not how long his detention at the investigation stage has lasted and how long it has lasted at the stage of the court proceedings, but the total period of his detention and whether his detention and its length are subject to review. If there is such a review at the investigation stage (Article 222 §§ 1 and 2), there is no reason why there should not be one at the stage of the court proceedings ...”.

COMPLAINTS

The applicant complained under Article 5 § 1 (c) of the Convention that there had been no judicial decision authorising his detention between 10 June and 10 October 1997.

He also complained under Article 5 § 3 of the Convention that the length of his pre-trial detention was in breach of the “reasonable time” requirement.

Finally, in his observations of 27 August 2003 the applicant's counsel complained that the conditions of the applicant's pre-trial detention breached Article 3 of the Convention.

THE LAW

1. The applicant complained about a breach of Article 5 § 1 (c) of the Convention, which provides:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(...)

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”

a) The Government submitted firstly that the applicant did not exhaust domestic remedies because between 10 June and 6 October 1997 he did not submit an application for release from detention. In this connection they stated:

“The Government would like to refer to the Baranowski v. Poland case, in which the applicant terminated period of his unlawful detention by submitting to a court a request for release under Article 214 of the Code of Criminal Procedure of 1969. In the judgment in that case the Court clearly accepted effectiveness of this remedy by finding that the examination of Mr Baranowski's request for release terminated the period of his unlawful detention (§§ 14-19 and 53 of the judgment of 28 March 2000, case no. 28358/95).”

The Court does not agree with the Government's reading of the Baranowski judgment. In that case, the Court found a violation of Article 5 § 1 of the Convention because the applicant was detained between 31 January 1994, when an order authorising his detention expired, and 24 May 1994, when a court dismissed applications for release lodged by the applicant on 7 February and 28 March 1994. Mr Baranowski, like the applicant in the present case, lodged his application for release from detention only after some time elapsed since the expiry of the detention order. The Government's interpretation of the Baranowski judgment would lead to the conclusion that Mr Baranowski's application to the Court was inadmissible for non-exhaustion of domestic remedies.

Accordingly, the Court does not consider that the applicant has failed to exhaust domestic remedies in respect of his complaint about a breach of Article 5 § 1(c).

b) The applicant initially submitted that his pre-trial detention between 10 June and 10 October 1997 was unlawful as there was no judicial decision authorising his detention. Subsequently, the applicant's counsel averred that the period of unlawful detention began on 17 April 1997, when a bill of indictment was lodged with the trial court.

The Government pointed out that the lawfulness of the applicant's detention before 10 June 1997 “did not raise any doubts”. They also pointed out that on 6 October 1997 the Kielce Regional Court gave a decision dismissing an application for release lodged by the applicant.

As for the period of the pre-trial detention between 10 June 1997 and 6 October 1997, the Government stated that they “refrain from assessing its compatibility with (...) Article 5 § 1(c) of the Convention, having regard to the judgment of the Court in the (...) case of Baranowski v. Poland ”.

The Court considers, in the light of the parties' submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicant also complained about a breach of Article 5 § 3 of the Convention, which provides:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The applicant submitted that the length of his pre-trial detention was in breach of the “reasonable time” requirement. He averred that the trial court had remained inactive during several months and that the first hearing had been held eight months after the bill of indictment had been filed with the trial court.

The Government submitted that the applicant's detention did not breach Article 5 § 3. They considered that domestic courts gave “relevant” and “sufficient” grounds of the applicant's detention since they relied on the reasonable suspicion that the applicant had committed the offence with which he was charged, the heavy sentence which he could receive and the need to take evidence from several witnesses. Moreover, the courts considered that the applicant's case did not disclose any of the grounds of release from detention listed in Article 218 of the Code of Criminal Procedure.

The Government also submitted that domestic courts showed due diligence in the conduct of the proceedings.

The Court considers, in the light of the parties' submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

3. The applicant's counsel further submitted in his observations of 27 August 2003 that the conditions of the applicant's detention disclosed a breach of Article 3 of the Convention. However, the Court notes that the applicant's pre-trial detention ended on 7 September 1998. It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaints under Article 5 §§ 1 (c) and 3 of the Convention;

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress Registrar President